Stonecost Pty Ltd v Manly Council

[2003] NSWLEC 315

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Land and Environment Court

of New South Wales

CITATION:	Stonecost Pty Ltd v Manly Council [2003] NSWLEC 315
PARTIES:	APPLICANT Stonecost Pty Ltd RESPONDENT Manly Council
FILE NUMBER(S):	10610 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Section 96 modification - hotel operating hours
LEGISLATION CITED:	Environmental Planning and Assessment Act Manly Local Environmental Plan
CASES CITED:
DATES OF HEARING:	19, 20 November 2003
EX TEMPORE JUDGMENT DATE :	11/21/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr A J Thompson, barrister SOLICITORS Brook Worthington RESPONDENT Mr W O'Rourke, solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10610 of 2003

Hussey C

21 November 2003
Stonecost Pty Ltd
Applicant

v

Manly Council
Respondent

Judgment

Background

1 This matter involves an appeal against council's refusal to allow a s 96(2) modification to a condition of consent relating to the hours operation for approved alterations and extensions to the Steyne Hotel at Manly.

2 After some negotiations and consideration, deferred development consent was granted by council (5/11/01) for alterations to this hotel, which is located on the corner of The Corso and North Steyne. That consent was for the addition of a second storey, incorporating additional bars, terraces and restaurant and included conditions relating to the use of these areas. Condition 66 stated:

66 The hours of operation of the additional storey is not to exceed 9 AM to 12 midnight 7 days per week without consent of council, to minimise impact on adjoining properties.

3 Also of interest in this matter is the following condition 3:

The second floor area is to be limited in its operation and not have live band or entertainment and no amplification inside that can be heard outside the premises. In this regard an acoustic consultants report shall be submitted and approved with the Construction Certificate stipulating the use materials and construction and limitation on sound volumes to ensure that noise does not exceed the ambient noise level as measured at the boundary of the subject properties.

4 Subsequently, the deferred commencement conditions were satisfied and a further conditional consent granted on 6 November 2002. It took into consideration prior applications for modification and maintained the original condition 3 and 66.

5 After this, modification of condition 3 was requested and council approved the following modification:

"The second floor is to be limited in its operation and not have live bands or entertainment amplification inside that exceeds the limitations normally imposed by the Environment Protection Authority and the Liquor Administration Board and any nearby residential properties or commercial premises with sleeping accommodation. In this regard an acoustical consultants report shall be submitted and approved with the Construction Certificate stipulating the use of materials and construction and limitations on sound volumes and terrace/balcony access to ensure that noise does not exceed the night-time Rating Background Level noise levels as measured outside nearby residential premises."

6 The further modification sought, which is the subject of this appeal, is to amend condition 66 to extend the trading hours of the new second floor to match the existing trading hours of the hotel, i.e. Monday to Saturday 5.00 - 5.00, and Sunday 5.00 -midnight. In support of this request, the applicant submitted an acoustic report from Day Design P/L consulting acoustical engineers.

7 Following the refusal of this modification application, the following issues were identified, which can be summarised for convenience as:

• whether the development relates to substantially the same development,
• noise amenity impacts on neighbouring residential properties,
• antisocial behaviour .

The evidence

8 Detailed evidence on behalf of Council was presented by:

• Mr H. Watson, town planner with Manly Council and his report is exhibit 2,
• Mr B. Murray, acoustic consultants and his report is exhibit 5,
• Ms B. Castor, social planner and her report is exhibit 6,
• Mr B. Fitzgerald, resident Peninsular Apartments,
• Ms J. Morgan, resident North Steyne,
• Mrs L. Fortesque, resident Peninsular Apartments,
• Mr I. Richmond, resident Pacific Waves apartments.

9 For the applicant evidence was presented by:

• Mr G. Smith, consulting town planner and his report is exhibit B
• Mr G. Porter, social planner and his report is exhibit C,
• Mr A. Clancy, licencee of Steyne Hotel,
• Mr A. Rossi, security manager of Steyne Hotel.

10 The primary hurdle in this matter is whether the modified development is substantially the same development, to which was granted consent. In a physical sense it does relate to the same development because there is no issue with the building configuration. The main difference concerns the use of the new area, whereby the conditions restrict entertainment that can be heard outside the building. In assessing this aspect, it seems reasonable to me to adopt a practical interpretation of this primary condition 3. From the evidence, I understand the intent of this condition is to allow entertainment inside, providing it is controlled so as to minimise noise nuisance to nearby residential neighbours.

11 I then note that this intention has been addressed in a comprehensive manner by the applicant's acoustic consultants, as required by the condition and the building incorporates extensive soundproofmg, as observed on the view.

12 Furthermore, there has been a conference between the respective acoustic consultants for both sides, resulting in their agreement that acceptable measures are provided to contain noise emission to acceptable noise amenity levels. Those noise control measures are included in the applicant's draft conditions and involve restrictions on music reverberant noise levels, fitting noise limiters to the sound system, and specific control of the timing of closure for the external openings to the building.

13 These measures are in accordance with accepted EPA and LAB licensing conditions.

14 It then seems to me that the assessment of noise amenity depends on a number of subjective elements, which results in a broad band of tolerance levels within the community. In this case, I note the consultant's agree that there is a high level of background noise, particularly at night, in this area. They also agree that the wall and roof construction is "adequate to control break out to the surrounding area, subject to the agreed conditions."

15 Under these circumstances then, I consider that the intent of the original condition 3 is reasonably satisfied and therefore the modified application does relate to substantially the same development.

16 Turning to the merits then, they relate firstly to the noise impacts from the new upper level of the hotel, resulting from the additional opening hours and secondly antisocial behaviour in the surrounding public domain. In support of this request I note that the applicant relies on its past and current management practices, which has not resulted in any specific complaints against this hotel. Furthermore, I note the Steyne Hotel is a member of the Manly Liquor Accord, which endeavours to improve safety and amenity and reduce alcohol related violence and antisocial behaviour.

17 I have then taken into account the applicant's final conditions for the modification (exhibit M), which provide for:

• closure of the internal courtyard doors (AB) at 10 PM,
• progressive closure of the terrace doors, (C, D, E, F) from 10 PM,
• progressive restriction on the use of the southern facing terraces during the week days 12 PM, and other control measures.

18 On this basis I accept the acoustic consultant's agreement that this package of measures results in reasonable noise amenity for this neighborhood.

19 The other issue concerns antisocial behaviour. I accept the evidence of the various witnesses that this unsatisfactory situation occurs on a regular basis. However there was no compelling evidence presented which directly linked the offenders to the Steyne Hotel. Particularly in relation to the incremental change for the proposed extended hours for the second level of the hotel, which in any case has an existing 24-hour operating licence, as do a considerable number of other businesses.

20 Instead it seems that this is a general community problem, which is compounded by the attraction of Manly as an international tourist destination. Whilst there is the voluntary Accord in place, it appears, from the evidence presented to the Court, that there are no other substantive initiatives, involving resources to address this problem, which indicates that it has only limited priority.

21 On this aspect, I have considered Ms Castor's detailed surveys and reports, together with her oral evidence. From this I am satisfied that the proposed trial period will enable the modified application to be reasonably tested, providing adequate community involvement is facilitated. It seems to me that the proposed condition 82, requiring the Hotel to put in place a Complaints Procedure satisfies this. This should be communicated to the precinct committee for the attention of concerned residents.

Conclusions

22 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this s 96 modification should be allowed, on the basis offered by the applicant in exhibit M.

23 Insofar as the original consent contained restrictions on noise omissions in condition 3, I am satisfied that the modified proposal does relate to substantially the same development.

24 With regard to the noise and antisocial behaviour issues, the evidence indicates to me that it is appropriate to give due consideration to the context of this area. The Hotel and surrounding residential apartments are in the Manly Business Zone 3. The objectives of the zone include:

(a) to provide for and encourage the development and expansion of business activities which will contribute to the economic growth and employment opportunities in the Manly Council area;…

25 I acknowledge that there are other amenity consideration controls also. However this business zone apparently currently include a considerable number of current commercial activities operating over a broad timeframe, which is consistent with the context of a well known and attractive tourist destination. Therefore the level of residential amenity is likely to be compromised to some extent when compared to a primary residential zone.

26 Notwithstanding this, I am satisfied that the final conditions adequately address the noise control to a reasonable degree as agreed by the acoustic consultants. Also there is no substantive evidence in my opinion, which indicates that the incremental change in operating hours will result in any significant change in community behaviour in the public domain, as result of this apparently "well managed hotel". I have also taken into consideration that the conditions include provision security services, the adequacy of which can be assessed during the trial period.

27 Accordingly I consider this s 96 modification should be allowed on the basis of a conditional 12 months trial period.

1. The appeal is upheld.
2. The s 96(2) modification for alterations of the operating hours at the Steyne Hotel, Manly, is allowed subject to the conditions in Annexure A.
3. The exhibit may return except for exhibits 2, 7, 8, 9, A and M.

_______________

R Hussey

rjs/ljr